In arbitration law, the concept of confidentiality and privacy are different from each other only on the basis of their scope and ambit. 'Privacy' in arbitration means that the arbitration proceedings cannot be attended by any party who is not a party to the arbitration proceedings. On the contrary, Confidentiality refers to non-disclosure of specific information pertaining to the arbitration in public. Thus, confidentiality as opposed to privacy is a wider concept since it places a relatively larger burden on the parties to the Agreement, by not only discouraging third party intervention in the hearings but also by disallowing them to disclose any information.

The Confidentiality of such specific information covers various aspects in arbitration which inter-alia includes (i) confidentiality of the arbitration proceedings – which imposes obligation to maintain confidentiality on all those who are either parties to the arbitration proceedings and who are present during the proceedings or have obtained any knowledge of the same by virtue of being a witness before the Tribunal or by virtue of being an employee/an administrative personnel/counsel of the parties to the dispute. All these persons are bound to not disclose any information that they may possess; (ii) confidentiality of the documents or evidence filed and relied upon by the parties before the Arbitral Tribunal; and (iii) confidentiality of the contents of the award passed by the Arbitral Tribunal.

Confidentiality under Arbitration and Conciliation (Amendment) Act, 2019:

Section 42A has been introduced to the Arbitration and Conciliation Act, 1996 ["Arbitration Act"] vide the 2019 Amendment, which provides that:

"Notwithstanding anything contained in any other law for the time being in force, the arbitrator, the arbitral institution and the parties to the arbitration agreement shall maintain confidentiality of all arbitral proceedings except award where its disclosure is necessary for the purpose of implementation and enforcement of award."

Section 42A has been brought into effect from 30 August 2019 as per notification of the Ministry of Law and Justice. The provision has been introduced taking into account the recommendations of the Srikrishna Committee, which was established with the objective to identify issues that affect the arbitration landscape in India and formulate a roadmap for making India a hub for international and domestic arbitrations. Vide its report dated 30.07.2017, the committee had recommended the following exceptions for inclusion to the duty of confidentiality:

  • Disclosure required by a legal duty;
  • Disclosure to protect or enforce a legal right;
  • To enforce or challenge an award before court or judicial authority.

However, the legislature, while drafting the Section 42A carved only one exception to the mandate of confidentiality, which is only while implementation and enforcement of an award, and unfortunately does not extend the exception as recommended by the Srikrishna Committee.

Analysis of Section 42A

Usually, the duty of confidentiality is imposed only on the arbitrators with respect to the performance of their tasks, but not of the parties to the arbitration or other people involved in the arbitration proceedings. Section 42A imposes the obligation to maintain confidentiality on the arbitrator, the arbitral institution and the parties to the arbitration agreement, therefore taking care of the above situation, where the parties or other people are not obliged to maintain confidentiality.

Further, Section 42A also does not carve out an exception to the mandate of confidentiality with respect to the rights of certain interested third parties to know the existence and/or the outcome of the arbitral proceedings, such as a parent company, principal/sub-contractor, shareholders of a company, corporate auditors, or even a party which is acquiring a party to the arbitration proceedings that requires a due diligence.

The law also fails to address multiple situations in which disclosure of arbitration proceedings and/or award or any other document(s) before a court may be necessary. Such requirement may arise in an application filed under Section 9 which can be filed for seeking directions for interim measures during the pendency of an arbitration, or while preferring an appeal against an order passed by an Arbitral Tribunal under Section 17 of the ACA, 1996.

There could also be instances where the general public may have a legitimate interest in an arbitral proceeding. Such instances may include proceedings where the State is a party. In such circumstances, the general public has a right to know the stance taken by the State and the behaviour exhibited by it. Therefore, imposing restrictions on disclosure of such information by way of Section 42A may also amount to violation of such right.

This view was also taken by the High Court of Australia in the case of Esso Australia Resource Ltd. v. Plowman, (1995) 183 CLR 10, which involved an arbitral proceeding between a state-owned utility and purveyors of gas. The Hon'ble High Court observed that the outcome of the dispute was one which would impact the public at large. Therefore, it held that the public has a right to know "about the affairs of the public authorities" as it directly affected their interests. The Court further observed that confidentiality, unlike privacy, is not "an essential attribute" of commercial arbitration.

The aforementioned scenarios, which are not accounted for by the Section 42A, will certainly throw open the question of whether the duty of confidentiality extends only to commercially sensitive information and awards or to all information pertaining to any given arbitral proceeding.


The insertion of Section 42A to the Arbitration Act reveals the intent of the legislature which is to codify the obligation to maintain confidentiality in arbitration proceedings. However, the said provision has casted a blanket duty of obligations to maintain confidentiality without emphasising much on its exceptions and applicability. The legislature should have carved out more exception for ensuring a balance of private and public interest, the scope of court proceedings under the Arbitration Act.

By way of introducing a legal obligation of confidentiality in Arbitration proceedings, it is evident that the regime of Indian arbitration has moved forward in the right direction. However, the provision Section 42A, especially the proviso to it, appears to have failed to address a plethora of exceptional situations where disclosure of confidential information is appropriate, and even desirable. The provision, therefore is bound to invite judicial challenges and consequent interpretations.

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